In a term in which the justices are already slated to weigh in on disputes over public funding for private schools that teach religion, the role of spiritual advisers in the execution chamber, and the flying of a religious flag on a city flag pole, the Supreme Court on Friday added another religion case to its docket. The justices agreed to hear the case of a high school football coach who wanted to pray at mid-field after games. The justices granted review in Kennedy v. Bremerton School District, along with four other cases, in an order list issued after their private conference on Friday.
The justices did not act on several of the other high-profile petitions for review that they considered on Friday, involving (among other issues) whether affirmative action in higher education violates federal law, whether a website designer can opt out of a non-discrimination law and refuse to create custom sites for same-sex weddings, and whether the court should overrule its 2020 decision holding that a large portion of eastern Oklahoma remains a reservation for purposes of federal criminal law. The justices could still take up those cases later, but their failure to do so on Friday means that even if they do, they are unlikely to hear oral arguments until the 2022-23 term.
The justices, however, likely will schedule arguments this term in the five new cases that they granted. The case of the football coach involves Joseph Kennedy, a practicing Christian whose religious beliefs require him to “give thanks through prayer, at the end of each game.” When he began his job as an assistant coach at Bremerton High School, a public school in Washington state, he initially prayed alone after games, but over time some of his players – and eventually a majority of the team – joined him. One parent complained that his son, a player on the team, felt like he had to join in the prayer, even though he was an atheist, or face a loss of playing time.
The school district ordered Kennedy to stop praying so that the district did not violate the Constitution’s establishment clause, which prohibits the government from favoring one religion over another. Kennedy announced that he would not comply, prompting a large gathering of people – including parents, a state legislator, and members of both teams – to join him at the 50-yard line after a game in October 2015 to support him.
The school district offered to try to accommodate Kennedy by, for example, giving him a private space to pray or allowing him to pray after the crowd had left the stadium. But Kennedy and his lawyers declined those offers, and after Kennedy prayed on the field again following two more games, the school district placed Kennedy on paid administrative leave.
During a performance review that year, the head football coach recommended that Kennedy not be rehired because (among other things) he had not followed the school district’s policy, and Kennedy did not apply for a coaching position. Instead, he filed a lawsuit in federal district court, arguing that the school district had violated his First Amendment rights and federal civil rights laws.
Kennedy came to the Supreme Court in 2018 seeking to get his job back while litigation continued. The court turned him down, but Justice Samuel Alito penned a statement regarding that denial that was joined by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh. Alito wrote that Kennedy’s free-speech claim raised important issues, and he suggested the case may warrant review in the future.
The district court ruled against Kennedy, holding that that “sole reason” the school district restricted Kennedy from praying was to avoid a violation of the establishment clause. A panel of the U.S. Court of Appeals for the 9th Circuit upheld that decision. It explained that although “there are numerous close cases chronicled in the Supreme Court’s and our current Establishment Clause caselaw, this is not one of them.” A divided 9th Circuit rejected Kennedy’s plea to have the full court rehear the case.
Kennedy returned to the Supreme Court in September 2021, telling the justices that the 9th Circuit’s ruling used “imagined Establishment Clause concerns to inflict real Free Exercise Clause damage.” “The religious expression of hundreds of thousands of teachers in the Ninth Circuit is now on the verge of extinction,” he contended. Moreover, Kennedy added, the ruling’s “chilling effects elsewhere around the country are palpable, as the Ninth Circuit essentially held” Kennedy’s “efforts to publicize the denial of his constitutional rights against him.”
Kennedy’s “brief, quiet prayer” was private speech, the coach insisted, and not part of his job; the school district has no interest at all in eliminating it. The district, he argued, would not have violated the establishment clause by allowing him to pray after the games.
The school district countered that whether Kennedy has the right to a “brief, quiet prayer by himself while at school” “is entirely beside the point” – particularly when, the district insisted, “every word of that description is wrong.” The dispute before the court, it stressed, is “about a school district’s authority to protect students when its employee does not work with it to find a reasonable accommodation.” A ruling for Kennedy, the school district warned, would require the Supreme Court “to overturn decades of settled law under both the Free Speech and Establishment Clauses.”
The justices agreed on Friday to take up four other cases:
- George v. McDonough, in which the court will consider whether a denial of a veteran’s claim for benefits that relies on an agency interpretation that is later deemed invalid is the kind of “clear and unmistakable error” that allows the veteran to challenge an otherwise-final decision.
- Vega v. Tekoh, involving whether a plaintiff can bring a federal civil rights claim against a police officer based on the officer’s failure to provide a Miranda warning.
- Nance v. Ward, involving the procedures by which an inmate must raise his challenge to the method by which the state intends to execute him.
- Shoop v. Twyford, involving (among other things) whether a court must determine whether evidence would help an inmate seeking a writ of habeas corpus and whether the court can consider that evidence before the court grants an order allowing the inmate to develop new evidence.
The cases granted on Friday are likely to be argued in the court’s April argument session. We expect more orders from Friday’s conference (although not necessarily more grants) on Tuesday, Jan. 19, at 9:30 a.m.
This post is also published on SCOTUSblog.